Limitations on Malicious Arrest
Limitations for filing actions based on malicious prosecution are found in MS Code Ann 15-1-35: All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such...[ read more ]
Post-Conviction Relief Time Limitations
Time limitations for Post-Conviction relief are found in MS Code Ann 99-39-5(2): A motion for relief under this article shall be made within three (3) years after the time in which the petitioner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking...[ read more ]
Lawsuit by Debtor in Bankruptcy
It is generally accepted that the debtor may not waive the automatic stay. If the debtor affirmatively acts, such as by commencing litigation post-bankruptcy, the defendant is permitted to defend itself without running afoul of the automatic stay (although, in defining the parameters of a defense, many courts distinguish between mandatory counterclaims, which are allowed, and permissible counterclaims, which are...[ read more ]
Amendment of Indictment to Habitual Offender
Mississippi Circuit Court Rule 7.09: All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the...[ read more ]
Mississippi Rule of Appellate Procedure 4(d)
MRAP 4(d): If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure. . . (5) for relief under Rule 60 if the motion...[ read more ]
Core vs. Non-Core Proceedings in Bankruptcy Court
Core proceedings are proceedings or issues that are entirely related to the bankruptcy case. The bankruptcy judge presides over these issues. Core proceedings in a bankruptcy case include: Matters concerning estate administration. For example, the court has jurisdiction over the bankruptcy trustee's duties in administering the estate. Matters concerning creditors' claims. For example, if the trustee objects to a creditor's claim, the court has...[ read more ]
Motion for a New Trial MRCP 59
MRCP 59(a) provides that the trial court may grant a new trial ” … in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” In non-jury cases ” … the court may open the judgment if one has been entered, take additional testimony,...[ read more ]
Statutory Preference for Administrator
Statutory order of preference for appointment of Administrator. § 91-7-63, MCA. Surviving spouse. Next of kin, if not otherwise disqualified. Other third party, bank or trust company. If no application is made within 30 days of the decedent’s death, administration may be granted to a creditor or other suitable person. If no application is made and the decedent left property...[ read more ]
Fiduciary Duty
There are two types of fiduciary relationships: 1. Those created under the law, (a) as applied to particular relationships governed by statute (such as partner and partnership) or by legal proceedings (such as administrator and heir), or (b) as applied to contractual relationships (such as principal and agent or attorney and client); and 2. Those that are created by case...[ read more ]
Fraudulent Misrepresentation
To establish a claim on fraudulent misrepresentation, the elements of fraud must be proven by clear and convincing evidence. Levens v. Campbell, 733 So. 2d 753 (¶ 35)(Miss. 1999). These elements include: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be...[ read more ]
